Kosovo’s Special Prosecution Office said Tuesday
that it is investigating allegations that the Constitutional Court
falsified part of a closely watched ruling.

Valerie Hopkins

BIRN

Pristina

Kosovo ombudsman Sami Kurteshi. Photo by OSCE.

Kosovo’s prosecution office has requested documentation from
Ombudsman Sami Kurteshi in support of his allegations against the
highest judicial body in the country, raised in a complaint filed on
February 26.

Kurteshi’s complaint had raised “reasonable
suspicion” that a criminal offence might have taken place, Liridona
Kozmaqi, spokesperson for the Special Prosecution, said.

The preliminary inquiry will determine whether the prosecutor will conduct a fully-fledged criminal investigation.

At
issue is the court’s rejection in November of an earlier complaint by
Kurteshi about how the three international judges were continuing to
serve on the court, beyond their mandates, under a presidential decree.

A
letter obtained by BIRN shows that one of the judges, Robert Carolan,
from the US, told Kurteshi’s office that although he was present when
the ruling was issued in November, he took no part in it, having recused
himself. This casts doubt on whether the court had a quorum to issue
the ruling.

Kurteshi says the President of the Court, Enver
Hasani and Arta Rama-Hajrizi, the judge rapporteur on the ruling, must
explain why Carolan’s decision not to participate was not noted.

“If
Hasani, Judge Rama-Hajrizi, or any other judge intentionally lied in
the Court’s decision, they violated public trust and must step down
immediately,” Kurteshi said in a statement.

The ruling in the
Ombudsman’s earlier complaint, filed in October, notes that one judge,
Kadri Kryeziu, was recused from the case but did not mention any other
recusals.

Requests from both the Ombudsman and BIRN to the
Constitutional Court, asking whether Carolan and two other international
judges were also recused, went unanswered.

The Ombudsperson is
demanding an investigation. “If it turns out they [the judges]
deliberately lied to the public, they must take full responsibility for
their actions,” he said.

“If they deliberately lied to the
public, there is no place for them on the Constitutional Court, or for
that matter, in any state institution of the Republic of Kosova,” he
added.

Decisions before the Constitutional Court go to a panel of three, which rules on whether a case is admissible.

Any decision rendered must then be approved by a quorum of seven out of nine judges.

As
the court does not have a ninth member, and as Kryeziu must recuse
himself from any decision with political overtones, after being seen
last summer with a member of the ruling coalition, the participation of
Judge Carolan and the other international judges is vital for a quorum.

In
response to a letter from the Ombudsman, Carolan wrote on February 2
that he “was present in the Constitutional Court” when the decision was
considered and decided but “did not participate in the deliberations or
decision of the Court because I had previously recused myself from
participating in the deliberations and decision of the court with
respect to that referral.”

The law on the Constitutional Court
says judges who are present must also vote, however. It also stipulates
that recusals must be made public in the court’s final decision. In this
case, it was not noted.

“Judge Carolan acted in accordance with
the law by submitting a letter to the court president but it is not good
that we don’t know whether or not the court made a decision,” Gjyljeta
Mushkolaj, acting dean of the University of Pristina’s law faculty and
former Constitutional Court judge, opined. “The public should be
informed in these cases.”

Riza Smaka, who helped draft the
constitution, said Carolan’s insistence that he was “present” was
irrelevant because he did not vote.

“That Carolan attended the
session or sessions of the Constitutional Court of Kosovo does not have
any legal effect, especially since he refrained from voting,” he said.
“They needed seven members, they had six, that means that by law this
decision is invalid.”

Granit Vokshi, a lawyer and former employee
of the EU law mission EULEX, and who advised it on constitutional legal
matters, including on the issue of international judges, says the court
could have come up with a creative legal solution to overcome such
circumstances.

“Since the quorum for deciding cases before the
Constitutional Court is set by the law, not by the constitution, the
court should have made a principled decision, which says that only a
quorum of four judges is needed in cases where the court cannot reach
its quorum of seven judges, as envisaged in the law,” Vokshi said. “This
would not apply only to the case in question but in all similar cases.”

The
inclusion of international judges in the court is a legacy of the time
when Kosovo was under international oversight under an International
Civilian Representative, who oversaw the management of Kosovo from its
declaration of independence in 2008 until “supervised independence”
ended in September 2012.

The terms of the judges were set to
expire in August 2014. However, an exchange of letters between the EU’s
then foreign policy chief, Catherine Ashton, and Kosovo President
Atifete Jahjaga envisaged new mandates for international judges,
granting authority over their selection to EULEX.

The
Ombudsperson challenged the President’s decree re-appointing them
because according to his interpretation of the law, the exchange of
letters did not override the constitutional stipulation that all
appointments to the court must go through parliament.

EULEX and
the European Union insisted on the reappointment of the international
judges in part because they worried about the lack of a quorum during
the turbulent summer months when Kosovo did not have a government.

Another
key factor was the role that the judges are due to play in the special
court being set up to try the revelations contained in the so-called
Dick Marty report. This contained detailed allegations of crimes
committed during 1999 and 2000.